State v. Kelley

836 So. 2d 1243, 2003 WL 183656
CourtLouisiana Court of Appeal
DecidedJanuary 29, 2003
Docket36,602-KA
StatusPublished
Cited by11 cases

This text of 836 So. 2d 1243 (State v. Kelley) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Kelley, 836 So. 2d 1243, 2003 WL 183656 (La. Ct. App. 2003).

Opinion

836 So.2d 1243 (2003)

STATE of Louisiana, Appellee,
v.
George KELLEY, Appellant.

No. 36,602-KA.

Court of Appeal of Louisiana, Second Circuit.

January 29, 2003.

*1244 James E. Beal, Jonesboro, Amy C. Ellender, for Appellant.

Richard P. Ieyoub, Attorney General, Jerry L. Jones, District Attorney, Geary S. Aycock, Assistant District Attorney, for Appellee.

Before WILLIAMS, GASKINS and PEATROSS, JJ.

WILLIAMS, J.

The defendant, George Kelley, was charged by bill of information with distribution of cocaine and conspiracy to distribute cocaine, violations of LSA-R.S. 40:967 and 40:979. The defendant waived his right to a jury trial. After a bench trial, he was found guilty as charged on both counts. He was subsequently sentenced to serve five years at hard labor for the distribution of cocaine conviction, and two and one-half years at hard labor for the conspiracy to distribute cocaine conviction. The trial court ordered that the sentences be served concurrently. The defendant now appeals, challenging the sufficiency of the evidence to support his conviction on the conspiracy to distribute cocaine charge. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On April 17, 2001, Sergeant Mike Rowland of the Ouachita Parish Sheriff's Department was working with the Metro Narcotics Division on drug-trafficking investigations. At the time, his assignment was to complete an undercover drug buy/ bust in Monroe, Louisiana. Sgt. Rowland was driving a vehicle which was equipped with audio and video surveillance equipment. A surveillance unit followed him at a distance to several locations where illegal drugs were sold. Metro Narcotics had given Sgt. Rowland money (several numbers of which had been recorded) to purchase illegal drugs.

A short time later, Sgt. Rowland drove to the corner of Owl and D'Arbonne Streets, where he observed the defendant and another suspect, Edward Mansfield ("Mansfield"), standing near the corner. According to Sgt. Rowland, he pulled up to the corner and asked the defendant for a $20 rock of crack cocaine. The defendant retrieved two rocks of crack cocaine from Mansfield and handed them to Sgt. Rowland through the car window. Sgt. Rowland then gave the defendant $20 of the Metro Narcotics buy money. Sgt. Rowland engaged in a conversation with the defendant to allow the arrest team time to arrive at the scene and identify the defendant. Sgt. Rowland and the defendant discussed a future purchase of an additional $60 worth of crack cocaine. After the surveillance team arrived, Sgt. Rowland left the scene. He later identified photographs of the defendant and Mansfield as the individuals who had sold him the crack cocaine.

Officer Harold Freeman of the West Monroe Police Department Metro Narcotics Division was also involved in the surveillance. Officer Freeman testified that he observed the defendant and Mansfield at the window of the undercover vehicle. *1245 Officer Freeman testified that although he could not identify which voice belonged to which individual, he did hear the drug transaction taking place. According to officer Freeman, he heard Sgt. Rowland ask for a "20", and thereafter, he heard Sgt. Rowland give the signal for the arrest. After the arrest, a search of the defendant produced a bag of marijuana and the buy money.

Sergeant Bob Morris of the Ouachita Parish Sheriff's Department Metro Narcotics Division was also involved in the investigation and heard the transaction via audio surveillance. Sgt. Morris testified that Sgt. Rowland drove up to the corner and asked the defendant for a $20 rock of crack cocaine. Sgt. Morris also testified that Sgt. Rowland gave the defendant $20 of the Metro Narcotics buy money. Sgt. Rowland then gave the arrest team the signal and engaged in conversation with the defendant. Sgt. Morris heard Sgt. Rowland and the defendant discuss the future purchase of $60 worth of crack cocaine. Sgt. Morris stated that the defendant was arrested and a search of the defendant resulted in the seizure of a bag of marijuana and the buy money.

Subsequently, the defendant waived a jury trial and was found guilty as charged on both counts after a bench trial. He was sentenced to serve five years at hard labor on the distribution charge, and two and one-half years at hard labor on the conspiracy charge. The trial court ordered that the sentences be served concurrently. The defendant now appeals, alleging that the trial court erred in convicting him of conspiracy to distribute cocaine because the offense arose out of the same evidence used to convict him of distribution of cocaine and the state failed to prove that he was the person involved in the drug transaction.

DISCUSSION

The defendant contends his conviction for conspiracy to distribute cocaine constitutes double jeopardy because the offense arose out of the same evidence used to convict him of distribution of cocaine. He argues that the double jeopardy prohibition should have barred the simultaneous prosecution for the lesser included offense of conspiracy to distribute cocaine. The defendant also argues that the evidence presented at trial shows that he did not conspire to sell an additional $60 worth of cocaine. The defendant claims that Sgt. Rowland engaged in a conversation with Mansfield with regard to the future purchase. The defendant asserts that he did not participate in the conversation and did nothing beyond the initial act of distribution of cocaine, which he had already completed.

The state contends the trial court did not err in finding the defendant guilty of conspiracy to distribute cocaine and distribution of cocaine. The state argues that the evidence used to convict the defendant of conspiracy was not the same evidence used to prove the distribution charge. The two crimes, according to the state, are not the same offense. Finally, the state submits that the evidence of record clearly supports the defendant's conviction for conspiracy to distribute cocaine.

The constitutional standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132. This standard, initially enunciated in Jackson and now legislatively embodied in LSA-C.Cr.P. art. 821, is applicable *1246 in cases involving both direct and circumstantial evidence. State v. Smith, 441 So.2d 739 (La.1983); State v. Harris, 28,517 (La.App.2d Cir.8/21/96), 679 So.2d 549, writ denied, 96-2954 (La.9/26/97), 701 So.2d 975. This standard does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.

When the defendant asserts that he was not the perpetrator, or he remains silent, the state bears the burden of negating any reasonable probability of misidentification. State v. Powell, 27,959 (La. App.2d Cir.4/21/96), 677 So.2d 1008 (on rehearing), writ denied, 96-1807 (La.2/21/97), 688 So.2d 520.

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Bluebook (online)
836 So. 2d 1243, 2003 WL 183656, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kelley-lactapp-2003.